United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DEFENDANTS'
MOTION TO COMPEL ADDITIONAL VESSEL VISIT OF EXPERT THOMAS
H. Rich III United States Magistrate Judge
Sea3, LLC, Robert H. Larsen, and Stephen Taylor (together,
“Sea3”) move to compel plaintiff Maine
Windjammers, Inc. (“Windjammers”) to allow
Sea3's retained expert, Thomas Hill, to visit the S/V
Halie & Matthew (“Vessel”) for a third
inspection. See Defendants' Motion for Expert
Thomas Hill To Visit the Vessel (“Motion”) (ECF
No. 63). Because Sea3's request is untimely and
disproportional to the needs of the case and, in any event,
the information sought could be obtained, substantially, by
less burdensome means, I deny the motion.
Applicable Legal Standards
Rule of Civil Procedure 34(a) grants a party the right to
request that another party “produce and permit the
requesting party or its representative to inspect . . . any
designated tangible things[.]” Fed.R.Civ.P.
34(a)(1)(B). However, such requests must be “within the
scope of Rule 26(b)[.]” Id. Rule 26(b)(1)
allows parties to
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Civ. P. 26(b)(1).
district courts are to interpret liberally the discovery
provisions of the Federal Rules of Civil Procedure to
encourage the free flow of information among litigants,
limits do exist.” Heidelberg Ams., Inc. v. Tokyo
Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).
For instance, Rule 26(b)(2)(C) requires courts to limit the
extent of otherwise allowable discovery if
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C).
“[a] district court's case-management powers apply
with particular force to the regulation of discovery and the
reconciliation of discovery disputes.” Faigin v.
Kelly, 184 F.3d 67, 84 (1st Cir. 1999). “Several
courts have used this management power to deny untimely
motions to compel.” Burgos-Martinez v. City of
Worcester, 345 F.Supp.3d 105, 106 (D. Mass. 2018).
action involves a dispute between Windjammers and Sea3 over a
maritime contract, namely, an agreement that Sea3 would
bareboat charter the Vessel with an option to purchase her.
Motion at 1. Beginning on March 17, 2017, Sea3 took
possession of the Vessel and made significant changes to her.
Amended Complaint (ECF No. 13) ¶¶ 12-13.
Windjammers alleges that Sea3 abandoned the Vessel on
September 23, 2017, after failing to complete required
repairs and improvements and cure a payment default.
Id. ¶¶ 14-17. Central to the parties'
dispute is whether, as Windjammers alleges, Sea3 left the
Vessel in a state of disrepair and in worse condition than
when Sea3 took possession of her, id. ¶ 32, or,
as Sea3 contends, the Vessel was delivered to Sea3 in an
unseaworthy state, causing Sea3 to incur costs of
improvements and repairs, Amended Counterclaims, commencing
at page 13 of Defendants/Counterclaim Plaintiffs Sea 3,
LLC's, Robert H. Larsen, Jr.'s, and Stephen
Taylor's Answer, Affirmative Defenses and Amended
Counterclaims (ECF No. 38), ¶¶ 32, 40-41.
designated expert, Thomas Hill, inspected the Vessel twice
while it was alongside in Portland, Maine: once on May 14,
2018, and again on February 21, 2019. Motion at 1-2. Mr. Hill
drafted a report based on those visits as well as his review
of documents that included deposition transcripts. Letter
dated March 11, 2019, from Thomas R. Hill, AMS, to Twain
Braden, Esq. (“Hill Report”) (ECF No. 52-1),
attached to ...